2017-08-11 / Community

Arundel denies permit to compost company

By Duke Harrington Staff Writer

ARUNDEL — A local commercial composting operation that has been at the center of multiple court actions has been denied a conditional use permit by the Arundel Planning Board, placing its future operation in question.

At its July 27 meeting the board unanimously denied an operating permit to Dubois Livestock & Excavating Inc., located at 2 Irving Road.

The denial was based on a June 26 letter to the town from the Maine Department of Environmental Protection (DEP) which outlined “14 specific violations” of state regulations at the property.

Because of that letter, town code enforcement officer Jim Nagle declined to issue a letter to the planning board clearing the Dubois property for local permitting, the only permission from the town allowed under a June 2016 consent agreement hammered out in Superior Court following years of conflict between the town and the Dubois family business.

“They still need to get a conditional use permit from us,” Town Planner Tad Redway explained on Monday, “but the court order basically took us out of it and limited issuance of that permit to two criteria — them getting a letter from the CEO saying they’re good to go on all state regulations, and them submitting a clear and accurate site map.

“Frankly, they did not meet either of those conditions,” Redway said.

“My issue now with the whole thing is, if they are not in compliance with the consent agreement, do they lose their ‘grandfather’ status for their operation,” Town Manager Keith Trefethen said. “Because, as our zoning is now, they would be in violation of any of our ordinances. They couldn’t operate that composting operation without their grandfather status. So, that’s an issue we are waiting to get a ruling on.

“So, we’re in kind of a holding pattern right now. Where it takes us now, it will be up to Dubois to decide, as to whether then want to challenge that [denial] in court, or they feel they are in compliance with the decree.”

It was only hours after that interview that Dubois made its intent clear, hand-delivering a letter to Trefethen saying the company plans to sue if the planning board ruling is not overturned.

“The unequivocal provisions [of the consent agreement] left the Arundel Planning Board, with the ministerial duty to grant Dubois Livestock’s permit,” the letter claimed, adding, “It was not surprising that the Arundel Town Planner, Tad Redway, established his acute incompetence in his ability to read, understand and comprehend the meaning and content of the consent agreement.”

In June 2016, Dubois representatives and town selectmen signed a consent agreement drafted by retired Superior Court Justice Robert Crowley following a full day in mediation May 4, and later signed by sitting Justice John O’Neil.

The agreement settled two lawsuits and six other pending legal issues before the court involving the composting site, which has drawn numerous complaints from area residents due to an occasional strong smell emanating from the fields — sometimes noticeable from as far away as Old Orchard Beach.

The Dubois family has run a composting business on its 5.9-acre site since the early 1980s and has argued its operation is a “grandfathered use” despite a zoning change made by the town several years ago. Dubois first obtained a conditional-use permit from the town in 2000, allowing it to conduct commercial composting operations in the town’s R-4 residential zone. That permit is due for renewal every three years and was most recently reissued in February 2011. However, that renewal came with conditions set by the planning board, namely that Dubois allow annual inspections by Redway, and that by March 1 of each year it submit a list of all materials, and the tonnage of each, taken in for composting during the previous year.

Dubois subsequently refused both conditions, claiming local permitting requirements for their operation were at odds with state law, which, they argued, holds jurisdiction. The company has thus operated without town permits since 2011.

Much of the subsequent protracted legal debate over Dubois’ composting has centered on what constitutes a “farm.” That question was complicated in 2014, when an amendment to the Maine Agriculture Protection Act went into effect. It added manure and compost to the statute’s definition of “agricultural products.”

After the town pulled Dubois’ 2011 permit, upholding the decision at the board of appeals hearing in January 2013, the family appealed in Superior Court. That led to a November 2014 ruling, in which the court sided with the town, saying local ordinances can be enforced because they are not stricter than, or inconsistent with, the state Solid Waste Act.

However, despite the order, Dubois representatives continued to refuse municipal inspectors access to the site, although they did eventually file for a new permit.

At an Aug. 13, 2015 meeting, the planning board voted 6-0 — with board member John der Kinderen recusing himself as an abutting property owner — to deem Dubois’ new application incomplete, because “numerous items were not submitted.”

That decision was disputed within the 30 days allowed by state statute. However, at a hearing before the Arundel Board of Appeals on September 29, 2015, Dubois family members and representatives walked out of the meeting, saying they understood it was called to take public comment on the case, not to conduct an actual hearing on his company’s administrative appeal.

Less than two weeks after the appeals board walkout, complaints of a rancid odor wafting from the Dubois property set phones ringing in the Arundel town office from as far as Old Orchard Beach.

However, what was done to cause that odor, and if it was a violation of any kind, remains unclear to this day. Trefethen said at the time he believed the Dubois turned some of the compost it makes and spread it out on its fields. But without being able to send an inspector, it could not be determined if Dubois spread uncured compost, or took new raw product, from more than 29,000 tons, including shellfish entrails, it is allowed annually.

The June 2016 consent agreement compelled Dubois to file a new application for a conditional use permit from the town before July 1. That deadline was met, according to Redway.

In a July 28 notice to Dubois, Redway said the application was denied for lack of a letter from Nagle attesting to the fact the site was in compliance with its solid waste permit from the Maine Department of Environmental Protection [DEP], and all other “pertinent state regulations.”

“As part of the court decree, they had to be in compliance with state regulations in order to get the required letter from the town,” Trefethen said. “That letter was never given because there were numerous notices that have been issued to Dubois in reference to DEP violations. The DEP gave them up to 10 days to make a correction for each of the notices they had. We are not aware that any of those issues have been rectified.”

Redway said Nagle has been able to conduct the annual inspection allowed by the court order. However, that review was limited to walking the road frontage of the property.

“He can see the drainage and things right there at the road, but really can’t tell what’s going on on the property,” Redway said.

The planning board also objected to the site map provided by Dubois as part of its filing.

“Please be advised the reduced map was very difficult to read and missing a title block verifying the scale, the name of the surveyor of preparer and the date the map was prepared,” Redway wrote to Dubois.

Trefethen and Redway agreed any action halt all composting work at the Dubois property, due to alleged violation of the consent agreement, is a call only selectmen can make.

“We haven’t gotten that far yet,” Trefethen said. “They’ll discuss that at some point, I just don’t know when. We’re sort of holding pattern right now to see what our next step is going to be, and to see if DEP is going to issue any more violations or notices. I was under the understanding that they were.” In the June 26 DEP letter, Environ- mental Specialist Michael Clark said state inspectors were repeatedly denied access to the Dubois property, finally having to obtain permanent injunctive relief from the court in February.

On April 11, and again on June 8, 19, and 20, DEP inspectors, responding to odor complaints, deemed the downwind strength of the smells coming off the Dubois compost fields to register “a 4 on the modified 5-point odor intensity referencing scale,” Clark wrote.

Earlier, on March 24, DEP responded to a report of “fish sludge” spilled by a Dubois truck on Fletcher Street in Kennebunk, just after the Maine Turnpike northbound ramp. Because the material was presumably bound for the Dubois farm, and because liquid waste is prohibited, DEP asked for detailed information on what the company was transporting.

“Dubois responded on April 5 via email and stated that ‘if and when we secure deliveries with our trucks is not a concern of the DEP in relation to your inspection of the facility.”

“The nature and circumstances surrounding the violations discovered has led DEP to conclude that final resolution of this matter may include monetary penalties as part of a civil penalty action,” Clark wrote to Nagle.

Clark could not be reached for comment on the status of any DEP action against Dubois.

In an email Tuesday, Sol Fedder offered comment on behalf of Dubois, claiming the planning board had no right to deny the company a conditional use permit:

“As a part of our agreement and clearly set out unequivocally in the consent decree, the planning board, was divested of any discretion to do anything other than grant our permit. Section 1B clearly states that our July 1, 2017 renewal application and all other renewal applications are deemed to have been satisfied as to all performance criteria, or that criteria is deemed inapplicable by Dubois’ grandfathered status.

“In other words, the planning board was under a duty to grant our renewal permit either on the grounds that it was “deemed satisfied” or “deemed inapplicable” based on Dubois Livestock’s grandfather status.”

According to Redway, no representative from Dubois attended the July 27 planning board meeting.

“We at Dubois Livestock wanted to be sure that our permits were not subject to the chicanery, nonsense and incompetence like that which was displayed at the July 27 planning board hearing,” Fedder wrote. “We were not surprised by the actions and conduct of the planning board. That was the very reason we negotiated the nullity of their discretion in relation to our agricultural composting operation.

“We hope that Mr. Trefethen can convince the planning board to come to their senses and correct their disobedience of the consent decree, by, Friday, Aug. 18. If not, we will timely appeal the decision to the Arundel Zoning Board of Appeals.

“We will also simultaneously instruct our counsel to take action against the town of Arundel and its representatives, which will include seeking contempt orders and damages under Maine Rules of Civil Procedure.”

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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